Helping Your Attorney Beat a DWI Charge.

Standardized Field Sobriety Tests (SFST)

neck, back, leg or inner-ear

In order for the police to generate probable cause to arrest you in a DWI stop they will ask you to perform standardized field sobriety tests (SFST). These include the walk-and-turn, one leg stand, horizontal gaze nystagmus test. These tests are taught to the police officers in week long classes, yet you have to learn how to do them immediately, at night in the freezing cold when you are nervous. One of the first things that you should bring to your attorney’s attention is if you have any neck, back, leg or inner-ear injuries, eye conditions (i.e. a pre-existing stigmatism) or diabetes. The manual utilized to teach these tests advise the officers that if an individual has a neck, back, leg or inner-ear issue - the SFSTs should not be done. This is because there is no way to adjust the tests for people with certain conditions. Also police do not want to be held responsible if the person further exacerbates the injury by falling to the ground.

If you have any type of condition or injury, even one in the past, it is necessary to bring this to our attention so that we can evaluate whether or not this can be used as a basis to exclude the SFSTs and eliminate the probable cause for your arrest.

Over 65 years of age or 50lb or More over Weight

As we age our agility and balance decreases. Based upon studies conducted to develop the SFSTs, police are instructed not to perform SFST on people that are over 65 years old since there is no way to tell if the person’s performance of the SFST is the result of being under the influence or because of age.

For similar reasons, persons who are 50lbs or more over weight should also not be administered SFSTs since this has been shown in the studies to develop the SFSTs to effect ones balance.

Since a person’s age and weight are frequently difficult to tell, make sure to bring this to our attention if you fall within one of these categories.

Footwear

The manuals for SFTS instruct police not to perform SFST on individuals wearing flip-flops or heels over 2 inches. Rather the police are instructed to have the person remove the flip-flops or high heels to perform the tests. Flip flops and high heeled shoes lack support and thus make the tests much harder to perform. The SFSTs were verified on a flat, dry surface with flat shoes, not flip-flops or high heels. If you were wearing flip-flops or heels during these tests you need to bring this to our attention.

ALCOTEST 7110

Acid Reflux / Gurd

Alchohol breath testing devices including the Alcotest 7110 are designed to test your breath. However the machines are not smart enough to distigish between alcohol coming from your stomach as opposed from you lungs. Individuals with acid reflux have a condition where the opening to the esophagus does not completely close. As such, the liquids and gasses in the stomach can rise back up. Thus, it is possible that the alchol vapor rising from stomach is incorporated into to the breath test results thus artificially increasing the reading. If you have been diagnosed with this condition, make sure to bring this to our attention.

Respiratory Conditions

The Alcotest 7110 requires two (2) valid breath tests in order to produce result. However providing those samples is not always as easy as it may seem. Every week clients are charged with a refusal charge (NJSA 39:4-50.2) due to an allegation that they did not provide a sufficient sample. Attorneys call this a blowing refusal. For many reasons a person may have difficulty blowing hard enough for the length of time required by the machine. The current Alcotest 7110 requires 1.5 liters or air. The machine provides for eleven (11) attempts however, many times the officer will become impatient and press the “abort” button because he/she believes that the person is intentionally trying not to blow hard enough.

In reality you may be suffering symptoms of long-COVID, asthmatic or sufferer from some other type of permanent or temporary respiratory condition which prevented you from providing an adequate sample. For example you may have permanent lung damage from a prior COVID-19 infection. If you fall in this category, let us know so that we can you this in court.

Mouth alcohol

The Alcotest 7110 tests alcohol vaper. It has no true way to distinguish between alcohol vaper coming from your lungs or evaporating off of the sides of your mouth. As a result state law requires that the police inspect your mouth and make you remove any object in your mouth. Thereafter they must wait 20-minutes which in theory is a sufficient time for the mouth alcohol to evaporate from your mouth, prior to administering the Alcotest. If this is not done the results are not admissible in court. Police know this rule and almost always write in their reports that they waited 20 minutes. However on further review of additional discovery, it is often the case that the police failed to actually observe the individual for the full 20-minutes. Either 20-minutes uninterrupted was observed or it was not, close does not count according to the New Jersey Supreme Court.

Things that may be in the mouth include but are not limited to: gum, dentures, Invisalign, tongue rings etc.

Burp

During the 20-minute “observation period” the police are required to watch and listen to make sure that a person does not burp, or regurgitate. For the same reasons explained above, any stomach contents in the mouth can and will provide a false reading on a Alcotest device. If you burp or regurgitate in your mouth, the 20-minute observation period must begin again.

MOUTH PIECE

Current law requires an Alcotest operator to change the mouth piece between each breath sample. The machine requires a minimum of two(2) breath samples to produce a result or up to a maximum of (eleven)11 tries. If the operator fails to change the mouth piece for each breath sample, the results will be inadmissible in court.

Cellphone, apple watch, fit-bit, Bluetooth earbuds & OTHER ELECTRONICS

Current law requires that no electronics are permitted in the Alcotest room. This includes the police officers’ radios, body-cams and cell-phones, Bluetooth earbuds, remote glucose and heart monitoring devices, to name a few. This also includes your cell phone and apple watch. This is because the Alcotest may be effected by radio frequency interference which could effect the machine’s operability and reliability.